Freedom of Expression in Ukraine
The Ivano-Frankivsk oblast. Informational sphere of the region: statistical data
А. 1. The number of the registered mass media
According to the data of the representative of the National Council of Ukraine in charge of TV and radio broadcasting in the Ivano-Frankivsk oblast and the data of the directorate in charge of the press and information of the oblast state administration, 279 mass media are registered in the oblast.
2. The number of printed mass media and their runs
There are 238 printed mass media in the oblast. On 1 January 2003 the total run of the newspapers was:
one-time run -- 364 587 copies;
yearly run -- 20 192 918 copies.
The runs of magazines and digests (there are about 40 of them) is not constant. The majority of these editions are published not periodically and with small runs.
3. The number of electronic mass media with the identification of broadcasting diapasons
14 TV companies, 6 FM-radio companies, 7 cable TV companies and 1 cable broadcasting company are registered in the oblast.
Radio “Zakhidny polus”, Ivano-Frankivsk — 104.3 MHz, broadcasting territory —Ivano-Frankivsk;
Radio “Dzvony”, Ivano-Frankivsk — 105.8 MHz, broadcasting territory — Ivano-Frankivsk;
Radio “Boychuk-studio”, Ivano-Frankivsk — 101.3 MHz, broadcasting territory —Ivano-Frankivsk;
Radio “Nova khvylia”, Sniatin — 101.8 MHz, broadcasting territory — the Sniatin district;
Radio “Siayvo”, Kolomya — 106.8 MHz, broadcasting territory — the Ivano-Frankivsk oblast;
The TV and radio company “Vezha”, Ivano-Frankivsk — 107 MHz, broadcasting territory — Ivano-Frankivsk.
TV companies of the oblast:
The oblast TV company “Galychchina”, Ivano-Frankivsk — channel 26 (1 kW), broadcasting territory — the Ivano-Frankivsk oblast;
The TV company “3-studio”, Ivano-Frankivsk — channel 30 (500 W), broadcasting territory — Ivano-Frankivsk, the Kalus district;
The TV company “RАІ”, Burshtyn — channel 3 (10 W), broadcasting territory — the Galych district;
The TVRC “Kolomya”, Kolomya — channel 37 (10 W), broadcasting territory — the Kolomya district;
The TVRC “Sniatin”, Sniatin — channel 9 (10 W), broadcasting territory — the Sniatin district;
The town TV “КМТ”, Kalush — channel 33 (100 W), broadcasting territory — the Kalush district;
The district TVRC “Nezalezhnist”, Kalush — channel 33 (100 W), broadcasting territory — the Kalush district;
The TVRC “Zakhid”, Rogatin — channel 12 (10 W), broadcasting territory — the Rogatin district;
People studio “Tysmenitsa”, Tysmenitsa — channel 5 (10 W), broadcasting territory — the Tysmenitsa district;
The TVRC “NТК”, Kolomya — channel 23 (100 W), broadcasting territory — the Kolomya district;
The TV company “Nadvirna”, Nadvirna — channel 3 (10 W), broadcasting territory — the Nadvirna district;
The TV company “Galychu — 1100”, Galych — channel 31 (100 W), broadcasting territory — the Galych district;
The district TV company “Kosiv -TV”, Kosiv — channel 8 (100 W), broadcasting territory — the Kosiv district;
The TVRC “Zakhid”, Dolyna — channel 5 (10 W), broadcasting territory — the Dolyna district.
Cable TV companies:
1) The TVRC “Discovery”, Ivano-Frankivsk;
2) The TVRC “RАІ”, Burshtyn;
3) The TVRC “Т+”, Kalush;
4) The TVRC “NТК”, Kolomya;
5) The TVRC “Kvant 2”, Kolomya*;
6) The company “Ephir”, Ivano-Frankivsk*;
7) The company “Khvylia”, Kalush*.
*— the companies that got the permission of the local power for the construction of cable networks. (According to the information of the newspaper “Vikna”, the company “T+” also develops its own cable network).
Cable broadcasting (“Mitris” system):
The TVRC “Karpaty” Ltd., Ivano-Frankivsk.
4. The number of Internet-editions
The official structures did not give us these data.
The number of mass media mentioned in items 1-4, which are actually present at the market:
Only 80 out of 198 registered newspapers, 9 out of 40 registered magazines and digests, as well as all cable, electronic and wire radio and TV companies, are actually present at the market.
B. 1. The number of mass media owned by the state
2. The number of mass media of the communal form of property
23 printed mass media.
9 companies of wire radio broadcasting.
7 TV companies.
1 radio company.
3. The number of privately owned mass media
2 companies of wire radio broadcasting.
3 TV companies.
5 radio companies.
8 companies of cable TV and cable broadcasting TV.
4. The number of mass media of the combined form of property
2 companies of wire radio broadcasting.
4 TV companies.
There are no separate statistics on printed mass media. It is known only that 23 editions are communal, there are no state-owned editions, so the rest 215 editions are privately owned or are of the combined form of property.
C, D. National TV and radio organizations in the region
1) National TV company of Ukraine, TVRC “Era”.
2) UT-2, TVRC “Studio “1+1”.
3) TVRC “Inter”.
4) TVRC “ІСТV”.
5) TVRC “STB”.
6) TVRC “Novy kanal”.
7) TVRC “NBM”.
8) TVRC “ТЕТ”.
9) National TVRC of Ukraine.
10) Radio “Niko-FМ”.
Other TV and radio companies of Ukraine have no licenses of the National Council for using the broadcasting channels in the Ivano-Frankivsk oblast.
E. The language of the mass media from item A
1) 236 newspapers, magazines and digests out of 238 were registered as Ukrainian-language editions, and 2 – as Russian-language.
2) All electronic mass media registered in the oblast broadcast their programs only in Ukrainian.
3) The official sources have no information about the Internet-editions.
F. The data on the population of the region
According to the data of the Ivano-Frankivsk oblast statistics directorate, on 1 January 2002 the population of the oblast was 1,406,129.
The population census of 2001 showed that the oblast is inhabited by the representatives of the following nationalities:
97,52% — Ukrainians;
1,77% — Russians;
0,1% — Byelorussians;
0,03% — Jews;
0,04% — Moldavians;
0,13% — Poles;
0,41% — other nationalities.
98.9% of the oblast population speak Ukrainian in their everyday life, 0.7% -- Russian, 0.4% -- other languages.
Igor MUDRYK, Kalush, the newspaper “Vikna” (sent on 30 April)
Correspondent of the newspaper “Krymskie novosti” was brutally beaten by strangers
In the evening of 11 April in Simferopol two strangers brutally beat Aleksey Ermolin, a correspondent of the Crimean informational-analytical weekly “Krymskie novosti”. The editorial board of the weekly informs that the attackers delivered several blows on his head, but the journalist managed to run away. The journalist turned to the nearest hospital, from where he was transported by motor ambulance to the Republican clinical hospital. The doctors find the wound on the left eyebrow, rendered him the urgent aid and put in the stitches.
“The blows were rather strong, it seemed that one of the attackers had brass-knuckles”, A. Ermolin believes. Both the journalist and the collective of “Krymskie novosti” believe that this attack could be provoked by his professional activities. A. Ermolin deals with a number of acute topics, such as the misuses connected with the lands of the South Crimean Coast, in particular, the conflict between the dwellers of the settlement Gurzuf and the company “Artek”, and the problems of the markets in the capital of the republic. “I got no threats by phone”, Ermolin said, “I got only the warning and the proposition to think. Yet, this phrase may be assessed in different ways”. The journalist did not say from whom he got the warning.
The officers of the main militia directorate of the Crimea do not connect the beating of Ermolin with his professional activities. Aleksandr Dombrovskiy, the head of the center of public relations of the Crimean militia directorate, believes that “this was a mere hooliganism”. According to his words, Ermolin did not turn to militia with the official complaint about the attack. The law-enforcing organs are conducting the investigation after the information obtained from the hospital, where the journalist turned. As A. Dombrovskiy pointed out, Ermolin got no serious injuries and there is no danger for his health. Now the journalist went to a business trip to Odessa. The departure of the journalist from the Crimea “impeded the investigation actions”, told the head of the PR-center.
The Black Sea TV and radio company
The newspaper “Vikna” asks: whether the information about communal debts is personal information, which must not be divulged by organs of state power?
13 April. The response of Oleg Tseluyko, the KhG lawyer.
This problem is very spacious, and I believe that this method of pressure on the citizens is a demonstration of illegal actions of state organs and, in particular, of state officials.
The protection of the citizens can be realized in several directions.
1) Distribution (publication) of the information about communal debts of an individual may be interpreted as meddling into private life or/and creating the further conditions for such meddling. This contradicts Article 8 of the European Convention and Article 32 of the Ukrainian Constitution.
Why? As we know, Article 32 of the Constitution reads (pay special attention to the provisions set off in italics):
Nobody must undergo the interference into his private and family life, except the cases envisaged by the Constitution of Ukraine.
Collection, storage, use and distribution of confidential information about an individual without his consent is inadmissible, except the cases envisaged by law and only in interests of national security, economic welfare and human rights.
Every citizen has the right to familiarize in the organs of state power, local self-rule and other organizations with the data about him, which are not state secrets of other secrets protected by law.
Everybody has the right guaranteed by court to refute false information about him or members of his family and the right to demand seizure of any information, as well as the right to demand the compensation of moral and material damage inflicted by the collection, storage, use and distribution of this false information.
This guarantee of non-interference to the private life also implies the guarantee of personal secrets, of providing the comparative independence from the state and society. The provisions of the Article contain the well-grounded restrictions of the collection, storage, use and distribution of confidential information on an individual (without his consent), since the disclosure of the financial and material state of the individual can exert the negative influence on his life, family status and many other factors.
Here we must determine whether the data on communal debts are confidential. Let us consider Article 23 of the Law of Ukraine “On information”.
Article 23. Information on an individual
Information on an individual – is the aggregate of documented of published data about the individual.
The fundamental data about an individual (personal data) are: nationality, education, family status, religious convictions, state of health, address, date and place of birth.
The sources of the documented information on an individual are the personal documents of the individual, documents signed by the individual, as well as the data about the individual collected by the organs of state power and organs of local and regional self-rule in the framework of their activities.
Collection of the information on an individual without his consent is prohibited, except the cases envisaged by law. Every person has the right to familiarize with the information collected on him. The information on an individual is protected by law.
As we see, Article 23 defines the concept of personal data, and confidential information is defined by Article 30 of the Law (not in very apt way, in my opinion):
The information with the restricted access is divided, by its legal regime, into confidential and secret.
Confidential information is the data, which are owned, used or handled by separate physical or juridical persons and are distributed by their wish and according to the conditions stipulated by these persons.
Citizens and juridical persons, who own the information of professional, business, industrial, bank, commercial or other types obtained at their own expense or the information, which is an object of their professional, business, industrial, bank, commercial or other interests and does not violate the secrets envisaged by law, regulate the regime of the access to this information by themselves, including giving the status of confidential one, and establish the system (methods) of protecting this information.
Now let us consider Decision of the Constitutional Court of Ukraine No. 5-зп of 30 October 1997 (the case of Ustimenko). Item 1 of the resolution part of the decision reads that Part 4 of Article 23 of the Law of Ukraine “On information” (2657-12) must be interpreted as follows: not only collection is prohibited, but also storage, use and distribution of confidential information on an individual without his consent, except the cases envisaged by law and only in interests of national security, economic welfare, human rights and freedoms.
Confidential information includes, in particular, the information on an individual (education, family status, religious convictions, state of health, date and place of birth, property state and other personal data). So, taking into account this interpretation, one can draw the conclusion that the data on property state belong to confidential information. Now let us solve the question whether the data on debts are the data on property state. This question is, unfortunately, not defined by the operating laws, but it may be solved in favor of the debtor on the basis of the laws of formal logics. Debt is one of the aspects of financial balance, so it is a part of property state of an individual; it is also a factor that influences property state of the individual and, maybe, of his family.
Here I want to remind that, according to the Law “On the Constitutional Court of Ukraine”, decisions of the Court are obligatory for fulfillment on the territory of Ukraine and may not be appealed against.
Thus, the obligation of the Decision is characterized by two features: 1) general obligation – for all subjects of right; yet, this concerns not the entire decision, but only its resolution part, where legal principle is interpreted or formulated; that is in the decision on the case of Ustimenko the Court formulated certain legal provisions that are generally obligatory; 2) special obligation – for the organs of state power, including court ones, which must take the decision in favor of Ustimenko in accordance with the Law “On the Constitutional Court of Ukraine”, in particular, Article 70.
As to the citizens right for the access to information, Article 31 of the Law “On information” states:
Citizens have the rights:
- to know during the period of collecting the information, which data are collected about them and with which aim; by whom, how and with which aim these data will be used;
- to get the access to the information on them, to deny its authenticity, completeness, appropriateness, etc.
State organs and organizations, organs of local and regional self-rule, whose informational systems contain information on citizens, must render this information gratis and without obstructions on the demand of the persons, whom this information concerns, except the cases envisaged by law, and to take measures for preventing the non-sanctioned access to this information. In the cases of violating these demands the Law guarantees the protection of citizens from the damage inflicted by the use of this information.
The provision stated in the next part of the Article seems to be interesting in the context of the request.
The access of unauthorized persons to the information on an individual collected in accordance with the operating laws by state organs, organizations and officials is prohibited.
Yet, when the lists of the debtors with their names and sums are made public, the conditions are obviously created for the passive access of everybody to these data.
The Article also reads that the necessary amount of the data on citizens, which may be obtained in a legal way, must be maximally limited and may be used only for legally envisaged aim.
I reckon that it is difficult to distinguish any legal aim in the demands to pay debts under the pressure of the threats to spread negative information, which would cause damage to reputation and relations with other people. Moreover, there exists the alternative way of settling the property conflicts between the providers and consumers of communal services without the public aspect: the debts may be demanded through a court according to the civil procedure, and this practice must be common in such interrelations. Such problems must be considered in the context of property disputes, and not PR-actions with the use of pressure, which are so habitual and close to our power structures. After all, private persons are most often involved in these conflicts, but not public figures
2) There is another potential violation of informational legislation directed at the abuse of the rights for privacy of the debtors: use and distribution of the information on the personal life of a citizen without his consent by the person, who owns the corresponding information as a result of the fulfillment of his service duties.
According to part 2 Article 47 of the Law “On information”, the person guilty of such actions must be responsible for the violation of informational legislation. I will not consider in details how the doctrine of bank secrets is stipulated in the national legislation and put into practice, but the attention to the secret of bank deposits in Ukraine and abroad is mush more than to the discussed problem. Yet, if to consider the question attentively, this question concerns the regime of elucidating the information about the finances of private persons, and the majority of citizens do not want this information to be made public.
3) And finally, how can we protect our rights?
Article 48 of the Law “On information” states that in the case, where the organs of local and regional self-rule and their officials commit the illegal actions envisaged by this Law, these actions may be challenged in the organs of higher level or in court.
The complaints against the illegal actions of the officials are handed to the organs of higher level, to which these officials are subordinated.
If the complaint to an organ of higher level was not satisfied, the interested citizen or juridical person has the right to appeal to court against the illegal actions of the officials.
The Constitutional Court pointed out that the fundamental norms of Article 48 of the Law “On information” are the norms formulated in the first part of the article, which norms envisage the right to appeal against the illegal actions committed by the organs of local and regional self-rule and their officials, as well as by political parties, other citizens unions, mass media, state organization, which are juridical persons, and separate citizens to the organs of higher level or to court, at the complainers option. The second part of Article 48 specifies the procedure of the appeals against the illegal actions of state officials in the case of turning to the organs of higher level, and part 3 of this Article stresses that the appeal handed to the organs of higher level may not be an obstacle for the following appeal to court. In the context of the entire Article 48 the third part may not be considered as the demand that a citizen may turn to court only after the appeal to the organs of higher level. The direct appeal to court is the Constitutional right of everyone.
In the framework of Article 56 of the Constitution Article 49 of the Law stipulates that in the cases, where the offence inflicted material or moral damage to the citizen, the guilty must recompense this damage on the basis of court decision. The recompensing sum is established by court.
Besides, I want to point out that the new Criminal Code of Ukraine contains Article 182, which reads:
Violation of privacy.
Illegal collection, storage, use and distribution of confidential information about an individual without his consent or spreading this information in public speech, in work of art, which is demonstrated publicly, or in mass media are punished by the fine up to fifty untaxable incomes, or the reformatory works for the term up to two years, or the arrest for the term up to six months, or the restriction of freedom for the term up to three years.
The majority of obstacles and problems (which are mainly formal) appear in the connection with the proofs of the objective side of the potential offence, namely the illegality of the distribution. Thus, it is possible to raise the question in some cases about criminal responsibility of the officials, who take the decisions on behalf of state organs about the divulgence of the information on the debts.
To conclude, I see three possible directions of protecting the citizens, who have communal debts, in the case of the discussed actions on the side of state or communal organs:
1) to hand the complaint to the officials of higher level;
2) to bring the suit to court, possibly with the demand of compensation;
3) to turn with the appeal about the institution of criminal case.
The statement of the prosecutors office on the violation of Ukrainian laws by Severodonetsk mayor V. Gritsychin
The adoption by the Severodonetsk town council of the budget was secret for the town dwellers since 24 January 2003, when the budget was adopted, and it has not been published until now.
On 27 February the Lugansk oblast organization of the Voters Committee of Ukraine sent a letter to V. Glagovskiy, the town prosecutor. The letter stated that “being a public organization, the main mission of which is the promotion of democratic values in Ukraine, the Lugansk branch of the VCU is displeased with such not-transparent actions of the organ of local self-rule”.
According to the results of the conducted inspection, the town prosecutors office submitted the statement to the town mayor Gritsyshin about the liquidation of the violation of item 5 Article 59 of the Law of Ukraine “On local self-rule in Ukraine”. Thus, the town dwellers may now hope to learn the “secret” of the local authorities in a month, of course if the mayor would take the appropriate measures for eliminating the violations of the law.
(Evhen Bayramov, “Politichna Ukraina”)
Lugansk CVU email@example.com
“Sailor” gives the signal “ SOS”
On 18 April 2003 Evhen Kravets, the editor-in-chief of the all-Ukrainian trade-union weekly “Moriak” (“Sailor”), turned for help to the Institute of Mass Information (IMI). He informed that on 31 March Mykhaylo Kireev, the head of the Trade Union of the sea transport of Ukraine, categorically demanded from him to leave the service on own will. This demand was motivated by the argument that the newspaper allegedly caused damage to the cooperation of the trade union with its social partner – the Ministry of Transport of Ukraine. Mr. Kireev also declared that he would introduce censorship in the newspaper and would personally check all materials before the publication (or these materials would be checked by his deputy Oleksandr Kaloshin). The head of the trade union ignored the remark of E. Kravets that such actions contradicted the Constitution of Ukraine and operating laws. The editor proposed to summon the editorial board for discussing the situation, but M. Kireev answered that he was not interested in the opinion of the editorial board and that he would stop the financing of the newspaper until the dismissal of E. Kravets.
On 2 and 9 April 2003 Oleksand Kaliushin visited the newspaper office with the aim to check the materials before sending to printing shop and repeated to the editor the demand to leave his post. Since April 2003 the financing of the newspaper “Sailor” was terminated. On 11 April 2003 M. Kireev turned to the editor-in-chief with the written demand to pass to him the originals of all statute documents and accounts in the connection with the planned re-organization.
The newspaper “Sailor” is the oldest Ukrainian trade-union newspaper, which is issued since 1912. This newspaper has its circle of readers and is a symbol of Odessa and the professional unity of sailors. The newspaper was founded by the trade union of workers of sea transport of Ukraine.
The IMI commentary:
The termination of financial aid endangers the existence of the newspaper and is a form of pressure on the collective of the edition.
1. The financing of the newspaper was realized on the basis of the agreement between the central council of the Trade union of workers of sea transport of Ukraine and the editorial board of the newspaper. According to this agreement, the founder must render the financial aid to the editorial board. The agreement does not envisage the one-side refusal to fulfill the obligations.
2. Article 2 of the Law of Ukraine “On printed mass media” reads: “The freedom of speech and free expression of opinions and convictions in the printed form are guaranteed by the Constitution of Ukraine and, according to this Article, mean the right of each citizen for free and independent search, obtaining, storage, use and distribution of any information with the help of printed mass media.
Printed mass media are independent. The creation and financing of state organs, establishments, organizations or posts for censoring the mass media are prohibited.
The demand of the preliminary agreement of messages and materials spread by printed mass media, as well as the prohibition to distribute the messages and materials on the side of state organs, establishments, organizations or citizens unions are inadmissible, except the cases, where a state official was the author of the distributed information or gave the interview.”
Thus, the introduction of censorship by the head of the trade union of workers of sea transport is illegal, since the legislation does not permit to founders to interfere in the editorial policy of newspapers, which is the pressure on the editorial board. By the way, the censorship is PROHIBITED in Ukraine (Article 15 of the Ukrainian Constitution).
The editor-in-chief has the reasons to turn to the prosecutors office with the appeal on the institution of criminal case according to Article 171 – impeding the legal professional activities of journalists.
Part 1 Article 171 envisages the punishment for impeding the activities of journalists: the fine up to 50 untaxable incomes, or the arrest for the term up to six moths, or the restriction of freedom for the term up to three years.
3. According to Article 34 of the Ukrainian Law “On enterprises”, liquidation or reorganization of an enterprise is realized after the decision of its owner or, in the cases envisaged by law, after the decision of the owner and the labor collective or the organ empowered to create such enterprises.
“Sailor” is a trade union newspaper. It is owned by the trade union of workers of sea transport. The decision about the foundation of the newspaper was taken at the Plenum of the Central Council of the trade union of workers of sea transport of Ukraine. According to the Statute of the editorial board of the newspaper, the decision on reorganization (liquidation) of the newspaper may be taken only by the Presidium of the Supreme Rada. So, it is senseless to speak about the reorganization without the decision and resolution of the Plenum.
The Institute of mass information [21 April 2003 5:33 p.m.]
* * *
Intimidation of the chief-editor of “Volna”
On 15 April Natalya Safikhanova, the chief-editor of the news service “Volna” of the Black Sea TV and radio company, was threatened by phone by a stranger. The talk was connected with the protest action of the tradesmen of the former Simferopol market “Autostop”, who erected the tent camp on the central square of the Crimean capital. The hunger-strike lasted already for 16 days. The man, who phoned to the news service “Volna” and asked to call Natalya Safikhanova, mumbled his name to the correspondent, who took the receiver, and the latter understood nothing. Safikhanova points out that the man was talking to her in the manner, which allowed to think that he knew her personally. The stranger asked why the news program “tells often about “Autostop” tradesmen” and asked: “Are you sympathizing with them, are you bored with your work?” When Safikhanova asked her interlocutor to introduce himself, he hanged up the receiver. This dialog did not contain direct threats, but the news service decided to made this case public. They did not hand the complaint to militia yet.
News service “Volna” firstname.lastname@example.org
The publications on Presidents connection with the murder of G. Gongadze are interpreted as meddling into Presidents activities according to Article 344 of the CC
3 April, the Kharkov group for human rights protection
On 31 March an official from the prosecutors office of Kremenchug came to the editorial board of the newspaper “Informbulleten”. The official explained his visit in the following way: since the newspaper had published many materials about Gongadzes case, Tamara Prosianik, the editor-in-chief, had to be interrogated as a witness in accordance with the order of the General Prosecutors office. In particular, in the connection with the article “Million dollars for the head of Georgiy Gongadze!» by T. Prosianik published on 5 December 2002. The material describes the press conference of Shokhin, a deputy of the General Prosecutor, at which he, among all, uttered the following version of Gongadzes death: he went, fell and broke his head. Besides, Mr. Shokhin asserted that the case of Gongadze was invented to frame the President. The article also reminded that General Prosecutor of Ukraine Sviatoslav Piskun promised the reward of 1 million USD for the aid in the disclosure of this murder. Editor of “Informbulleten” T. Prosianik interprets the situation as an attempt to gag an independent journalist by starting a criminal case against her, although there was nothing new in the publication of 5 December.
T. Prosianik answered the question of a Kremenchug prosecutors officer, who asked, why the newspaper had mentioned about the connection between L. Kuchma and Gongadzes murder. She wrote in her explanation: “The accusation of President Kuchma of the disappearance of Gongadze and the order for his murder may be proved by the audio records of major Melnichenko, which were made public by O. Moroz on 28 November 2000 in the Supreme Rada and the integrity and authenticity of which were confirmed by the conclusion of expert Brus Kenig (USA)”.
In what follows we present the text of Errand No. 06/2-30016-03/544
of the General Prosecutors office of 20 March 2003
THE GENERAL PROSECUTORS OFFICE OF UKRAINE
13/15 Riznitska St., Kyiv, 01601
20 March 2003
To prosecutor of the Poltava oblast, the state councilor of justice of the 2nd grade
(on the basis of Article 118 of the CPC of Ukraine)
The General Prosecutors office of Ukraine investigates criminal case No. 49-1120 started by the fact of publishing in mass media, brochures and other editions the materials directed at the illegal influence on the President of Ukraine with the purpose to impede the fulfillment by him of his service duties, according to part 1 Article 334 of the Criminal Code of Ukraine.
It was established that on 5 December 2002 the Kremenchug newspaper “Informatsiyny bulleten” having the run of 4000 copies published the article “Million dollars for the head of Georgiy Gongadze!» written by an unknown author. The article contains the following statement: “Now it is widely known that the murder was ordered, consciously or not, by President Kuchma”.
On the basis of the above-said, I ask to recommend to the subordinate officers to ascertain urgently the juridical address of the edition, its heads and founders, as well as the place of their permanent residence, the identity of the author of this article, his/her place of permanent residence and whether the author publishes articles under a pen-name.
Besides, I ask to seize one copy of the newspaper, as well as the manuscripts of the article and the documents, on which the article was based.
In the course of the fulfillment of this errand I ask to interrogate the editor-in-chief and the executive editor of the newspaper in the connection with the following questions: on the base of which documents the article was published, who was the initiator, whether the reliability of the information stated in the article was checked and who ordered the publication of the article. To interrogate the authors of the article about obtaining the materials and printing the article.
To conduct other actions, the need of which will appear during the fulfillment of this errand.
I ask you to send the obtained information to the General Prosecutors office of Ukraine.
The additional information may be got by the telephone: (8-044) 290-05-80.
Enclosure: decision on 1 page.
Head of the department of the main investigation directorate,
the General Prosecutors office of Ukraine
state councilor of justice of the 3rd grade V. Zherbitsky
17 March 2003
Head of the department in charge of the crimes in the service sphere of the main investigation directorate, General Prosecutors office of Ukraine, state councilor of justice of the 3rd grade V. Zherbitsky, having considered the materials of criminal case No. 49-1120,
In the course of the investigation of this case the need appeared of seizure of the documents, which were received by the editorial board and were the base for publishing on 5 December 2002 the article “Million dollars for the head of Georgiy Gongadze!» by an unknown author in the Kremenchug newspaper “Informatsiyny bulleten” with the run of 4000 copies.
The mentioned documents are stored in the editorial board of the newspaper.
On the basis of the above-stated, according to Articles 130 and 78 of the CPC of Ukraine
The DECISION was issued:
To conduct the seizure from the editorial board of the newspaper “Informatsiyny bulleten” of all documents connected with the publication in this newspaper on 5 December the article by an unknown author “Million dollars for the head of Georgiy Gongadze!» and a copy of the newspaper containing this article.
To send the copy of the decision to the General Prosecutor of Ukraine.
The head of the department in charge of the crimes in the service sphere of the main investigation directorate, General Prosecutors office of Ukraine, state councilor of justice of the 3rd grade.
“Prava ludyny” commentary: If to interpret Article 344 in the same way, as it is interpreted by the General Prosecutors office, then any discussion of any acute question concerning the top state officials may be regarded as a crime. Thus, the interpretation of Article 344 by the General Prosecutors office creates a new, very dangerous, precedent, which is a direct attack at the freedom of speech. It seems that our authorities do not want to listen to the strict critics on the side of the world community about the violations of the freedom of speech in Ukraine.
Moreover, the persecutions of Tamara Prosianik, the editor of the newspaper “Informatsiyny bulleten”, evidence that the situation with the independent mass media has deteriorated so much that we have almost reached the level of the former USSR.
We hope that the Parliamentary Committee in charge of the questions of the freedom of speech and information, as well as the Committee in charge of human rights, national minorities and interethnic relations will consider this case and evaluate it properly.
Inna Sukhorukova, the KhG
THE PROSECUTORS OFFICE INTERROGATED EDITOR OF “ANTENNA” VALERIY VOROTNIK ON THE CASE OF ANTI-PRESIDENT PUBLICATIONS
8 April, the institute of mass information (IMI), Kyiv
Last week the prosecutors office of the Cherkassy oblast seized the issues of the Cherkassy newspaper “Antenna” for November and December 2002. The issues contained the publications mentioned in the special errand of the General Prosecutors office of Ukraine. These were several articles reprinted from the newspaper “Grani-plus” written by Tetiana Korobova and one article by a journalist of “Antenna”.
Editor-in-chief of “Antenna” Valeriy Vorotnik also informed that on 31 March he was summoned to the oblast prosecutors office. He was interrogated as a witness on the case started by the General Prosecutors office after the facts of publication in mass media, brochures and other editions of the materials aimed to impede the fulfillment of service duties and the detriment to the authority of the Ukrainian President and having the insulting and slanderous character.
Vorotnik turned the attention to the fact that the prosecutors office seized the publications of “Antenna”, which were mentioned in the “monitoring” of the Ukrainian press. The “monitoring” was sent by Sergey Vasilyev, the head of the main directorate of the informational policy of the Presidential Administration, to Hanna Severinsen, the speaker of the Parliamentary Assembly of the Council of Europe, “as a confirmation that the wide pluralism of opinions exists in the Ukrainian mass media”.
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Our Cherkassy correspondent Petro Sushko informs that the investigation activities were carried out in Cherkassy in the connection with the criminal case on the publications in the weekly “Antenna” (the article “The President is disturbed by Jews only”) and the newspaper “Cherkasska Pravda” (the organ of the oblast organization of the Communist Party of Ukraine). The law-enforcing organs did not conduct searches in the editorial boards of these editions, but the oblast prosecutors office expressed the wish to possess the materials concerned with the case. On 31 March the prosecutors office of the Cherkassy oblast seized the issues of the newspaper “Antenna” for November and December 2002 containing the publications mentioned in the special errand of the General Prosecutors office of Ukraine. These were several articles reprinted from the newspaper “Grani-plus” and one article by a journalist of “Antenna”. Editor of “Antenna” Valeriy Vorotnik was also interrogated.
Court satisfied the claim of the former head of the Chernivtsy oblast department for fighting organized crime against the newspaper “Chas”
The Pershotravnevy town court partially satisfied the claim of Oleksandr Semenko, the former head of the Chernivtsy oblast department for fighting organized crime, against the newspaper “Chas”. The claim was connected with the insult of honor, dignity and business reputation inflicted to Semenko by a feuilleton printed in the newspaper. The newspaper must pay 50 thousand UAH to recompense the moral damage (the sum demanded by the plaintiff was 200 thousand). By the way, the surname of the claimant was not mentioned in the newspaper. The decision will be appealed in the appeal instance.
President Kuchma asked the General Prosecutor to close the criminal cases against five regional newspapers
[24 April 2003 2:53 p.m.]
President of Ukraine Leonid Kuchma asked General Prosecutor Sviatoslav Piskun to close all criminal cases started against the mass media for impeding the activities of the head of the state.
The UNIAN correspondent communicates that today L. Kuchma said at the press conference: “I asked the General Prosecutor to close all criminal cases concerning mass media, which published critical articles about the Ukrainian President”. He pointed out that “he did not need this” and could protect himself without somebodys help.
The President told that he had no connection with the cases started by the prosecutors office. He also said: “I do not know which mass media are involved in this case, maybe those, which I do not read”. At that, L. Kuchma pointed out that he disagreed with the situation with mass media in Ukraine and interpreted the freedom of speech as responsibility for ones words.
The UNIAN reference. The General Prosecutors office of Ukraine instituted the criminal case in the connection with the facts of publishing in mass media, brochures and other editions the materials, directed at exerting influence on President Kuchma with the aim to impede the fulfillment of his professional duties.
Case No. 49-1120 was started in accordance with part 1 Article 334 of the Criminal Code of Ukraine “Meddling into activities of a state official”.
The criminal cases were started against the newspapers “Informatsiyny bulleten” (Kremenchug), “Cherkasska Pravda” (Cherkassy), “Rivnenskiy dialog” (Rivne), “Pozitsiya” (Sumy) and “Antenna” (Cherkassy).
Five editorial boards are already involved in “Kuchmas case”: lawyers comments
10 April, the IMI, Kyiv
The General Prosecutors office of Ukraine started the criminal case after Article 344 part 1 of the CC of Ukraine “Meddling into the activities of the President of Ukraine” on the basis of the publications in mass media. According to the IMI data, heads of the editorial boards of five newspapers have been already interrogated in this case. The prosecutors officers also seized those issues of these newspapers, where the articles devoted to “Kuchmas case” were printed. Here is the complete list of these editions:
"Informatsiyny bulleten” (Kremenchug)
"Cherkasska Pravda” (Cherkassy)
"Rivnenskiy Dialog" (Rivne)
The IMI turns to everybody, who was interrogated in this case or from whom the printed editions were seized, with the request to inform us about this by the phone 212-19-66 or by e-mail address email@example.com
This case may be interpreted as another unprecedented attack at the freedom of speech and as an attempt to “recompense” the exclusion of the article about libel from the new Criminal Code. This situation excited disturbance and heated debates not only among journalists. In what follows we present the opinions of lawyers about this case.
Maria Sambur, the IMI lawyer:
The activities of mass media must be assessed according to the demands of the Ukrainian Laws “On information” and “On printed mass media (press)”. Publications in printed mass media must agree with the demands of Article 46 “Inadmissibility of misuse of the right for information” (Law of Ukraine “On information”), which reads: “Information may not be used for the appeals to overthrow the Constitutional order, breach of the territorial integrity of Ukraine, propaganda of war, violence, cruelty, fanning race, national or religious enmity, infringement on rights and freedoms of people”.
The information being a state secret or other secret information stipulated by laws may not be divulged. The second group of secret information includes: medical secrets, secrets of money deposits, incomes from entrepreneurial activities, adoption of children, correspondence, telephone talks and telegrams, except the cases envisaged by laws.
This list is exhaustive, and editorial boards, founders, publishers and distributors of mass media must be brought to disciplinary, civil, administrative or criminal responsibility for the concerned violations according to Article 41.
Article 344. “Meddling into activities of a state official”: The illegal influence in any form on the President of Ukraine, the Head of the Supreme Rada of Ukraine, an MP of Ukraine, the Prime Minister of Ukraine, a member of the Cabinet of Ministers of Ukraine, the ombudsperson or his/her representatives, the Head or a member of the Counting Chamber, the Head or a member of the Central Voting Commission, the Head of the National Bank of Ukraine, a member of the National Council of Ukraine in charge of TV and radio broadcasting, the Head of the anti-Monopoly Committee of Ukraine, the Head of the Fund of State Property of Ukraine, the Head of the State Committee of TV and radio broadcasting of Ukraine with the aim to prevent the fulfillment of their service duties or to make them to adopt illegal decisions imply the concrete actions directed at the impediment to the fulfillment of service duties by the state official or to the adoption of illegal decisions.
Thus, the publications criticizing the activities of the President of Ukraine may not be interpreted as criminal actions, since the editorial boards and journalists have no goals to influence the adoption of illegal decisions. On the contrary, mass media accent the attention of the society at the obedience by the state officials to the operating laws and disclose the violations of the legislation. So, the accusation of the journalists of the actions stipulated by Article 344 may be assessed as an encroachment on the freedom of speech, since the publications in the press are not illegal.
Bogdan Ferents, the manager of the Ukrainian-American juridical company “Ralin Consulting”:
I believe that the institution of this criminal case on the facts of the publications in mass media is absurd. Journalists criticize the activities of the authorities, and they have this right, since they are the reflection of the society. Journalists fulfill an important role in the society – they spread information.
As far as I know, editors of printed mass media are interrogated and issues of newspapers, in which the articles by Tetiana Korobova were printed, are seized. Yes, Korobova expresses her opinion about the President very harshly, but this is not a crime. If these publications abused honor and dignity of the President, he has the right to turn to court according to the civil procedure, and everybody would understand him.
Viktor Boyarov, an assistant professor of the Lawyer Academy of Ukraine, a candidate of law:
In our opinion, Article 344 of the CC of Ukraine envisages the activities (for instance, blackmail) directed at the impediment to the President of Ukraine (in this case) to fulfill his service duties or at adoption by him of illegal decisions. The quotation from the article printed in “Informatsiyny bulleten”: “Now it is widely known that the murder was ordered, consciously or not, by President Kuchma” does not satisfy these conditions. This article was not aimed to impede to the President to fulfill his service duties or to make him to adopt illegal decisions. The author merely expressed the opinion that the President had some connection with the murder of the journalist. These words may be considered by the President only as an insult of his honor and dignity.
Well, these actions may hinder the President in the fulfillment of his duties to a certain extent, but it may happen only if, for example, he would be offended so that he would not be able to work. So, this depends only on his subjective attitude both to these publications and to his duties.
Yet, the publication itself does not contain any attempts of illegal influence on the activities of state officials and does not infringe upon the normal work of state organs.
On the other hand, the journalists did not abuse the demands of Article 46 of the Law “On information”, which envisages the misuses of the right for information, since until now nobody have refuted the assumption on the authenticity of the so-called “Melnichenkos records”, which allegedly contained the talks of the President with other persons about G. Gongadze and which could be interpreted as the order to fulfill the illegal actions against the journalist.
Under such conditions we reckon that the criminal case started by the General Prosecutors office must be closed because of the absence of corpus delicti.
“Absurd is real and reality is absurd …”
14 April, the Kharkov group for human rights protection
The criminal case started by the General Prosecutors office after Article 344 means the new phase of the brutal advance against the freedom of the press. Maybe, it is only the first stage: they began from the provincial newspapers and now are waiting for the reaction. If there would not be any reaction, then the authorities would move their activities to the capital, where the unbearable articles by Tetiana Korobova are printed, and to the Internet-editions… It has appeared that the publications about the connection of the President with the disappearance of Gongadze impede his work to such an extent that is interpreted as a crime! So the officials decided to gag in such a manner those, who express their opinions openly!
I think that this criminal case will demonstrate whether the Presidents clique and the agencies loyal to him are really neglecting the permanent reproaches of the international institutions about the freedom of speech in Ukraine.
This criminal case is absurd from every aspect. We have already said about its “validity” from the point of view of the operating laws, and from the viewpoint of international legal standards the situation seems to be even clearer. Collection and distribution of any information that is not defined as secret is legal, independently of the motives of its collection and distribution. It is widely known that it is impossible to achieve democracy and the superiority of right without the freedom of collection, possession and distribution of information about everything concerning public life on the territory of the state or local communities. The freedom of expression is the foundation of democracy, since only well-informed citizens can hand the power to those, who would realize the power honestly and wisely. At the same time, the freedom of expression is the foundation of the superiority of right, since it is the best method to prevent the violations of right by the corrupted state officials. Every question concerning the domestic or foreign policy must be opened for public discussion, especially in the printed and electronic mass media. The freedom of discussing the controversial and complicated problems is the best stimulus for the government to adopt rational decisions that would be endorsed by the society.
These concepts were more than once confirmed by the practices of the European Court of human rights. The Court frequently quoted in its resolutions the fragment of the verdict of 1976 in the Handyside case, which stated that this freedom “may be applied to the “information” or “ideas”, which offend, shock or annoy the state organs or some part of public. These are the demands of pluralism, tolerance and breadth of views, without which no “democratic society” may exist” [§ 49].
The Court also declared for several times, in particular in the Belgium case Heis and Heisels, which concerned the admissibility of publishing extremely critical opinions about functioning of courts, that “it is necessary to keep in mind that Article 10 protects not only the contents of the ideas and information, but also methods of their expression” [§ 48].
Even if to assume that this meddling into the freedom of expression had the legal aim of “protecting public order and preventing crime” (one of the reasons of restricting the freedom of expression envisaged by law), all the same it is impossible to admit that this brutal influence was a pressing social need and that it was proportional. National power may not determine the balance of proportionality of any of these items and the freedom of expression without the assessment of the Court. This assertion can be illustrated, for example, by the case Klas and others: “Countries-members may not… apply every measures considered as proper by them” [§ 49].
The Spanish case Castells is also very interesting. The case was started after the claim of a senator, who was condemned for endangering the security of the state with the attempts of discrediting democratic institutions. In 1979 he published the article, in which he accused the government of the attacks of the right-wing armed groups and murders of Basques (20 years later it appeared that he was true). Spanish courts were not sure whether they had proper grounds for starting the criminal case. In one of its verdicts the Court pointed out that it appeared that the goal of these activities was not the protection of public order and national security, but the defense of the honor of the government. The appeals of Castells, in which he demanded to begin the consideration of the proofs of the veracity of the facts presented by him, were rejected by courts, since such consideration was inadmissible because of the accusation of insulting state institutions.
The European Court acknowledged that in this case the Spanish power violated the demands of Article 10. The arguments of the Court were the following: “Mr. Castells did not express his opinion from the senate rostrum (and he could do this without any risk), but decided to do this in the press. Yet, this does not mention that he lost his right to criticize the government. One must not forget about the main task of the press in a jural state… The freedom of the press gives to the political figures the right to criticize and comment everything that forms the public opinion, enabling everyone to take part in free democratic discussion, which is the essence of a democratic society…” [§ 43].
In the decision concerning this case the Court also remarked that, according to Article 10, “… the limits of the permitted criticism of the government are wider than of… a political figure. Activity or passivity of the government in a democratic society must be controlled not only by the legislative and court power, but also by the press and public. Besides, the dominating status of the government is a reason for introducing the restrictions of applying the criminal process, especially in the spheres, where other reactions are possible…” [§ 46].
Here are many other examples confirmed by the practices of the European Court. Let us hope that the quotation used in the title of this article will lose its actuality and the absurd will end.
Tetiana Montian: New Civil Code is a noose for journalists
It is known that for 12 years our long-suffering country manages to live according to the Civil Code of the UkrSSR, which “regulates property and … private non-property relations for creating the material and technical base of communism, and more and more complete satisfaction of material and spiritual needs of citizens” (Article 1 of the operating Code!). Yet, soon we will get the new Civil Code, which must come into force since 1 January 2004. Yet, if it comes into force, it would be awful! Why? I shall explain.
The drawbacks of the new Code are innumerable. I shall only consider several articles, which concern journalists.
The leader of this rating is, undoubtedly, Article 277: “Any negative information spread about a person is regarded as inauthentic”. So, be ready: since 1 January 2004 any critical word about anybody will result in punishment for insult of “… honor, dignity and buisness reputation of physical or juridical person”, that is for inflicting moral damage that “must be recompensed by money, other property or in other way” (Article 23).
At that “the inauthentic information must be refuted independently of the guilt of the person that spread this information (the same Article 277). Besides, along with the compensation, court may, according to Article 278, prohibit the publication of newspaper, book, movie or TV feature, which are prepared, or to prohibit (terminate) its distribution, or even to seize the run and to destroy it! It is obvious that some mass media will be the first ones that would undergo these measures, like it happened with the newspaper “Svoboda”, the run of which was drowned in a river. Yet, since 1 January 2004 such actions would not be a brutal arbitrariness, but legals action based on laws and court decision.
It is obvious that our legislators mean that negative information is regarded as inauthentic until it would be proved by facts. Yet, they could not state this simple idea in the proper form.
So, let us continue. If the information exists that is apriori negative, then there must exist the apriori positive information. Yes, it is so. Article 302 reads: “The information presented by an official in the framework of his service duties, as well as the information contained in the official sources (reports, shorthand records, messages of mass media fouded by state organs or organs of local self-rule) is regarded as authentic”. This Article also states that “a physical person that spreads such information is not obliged to verify its authenticity and is not responsible in the case of its confutation”.
Try to imagine what orgy of the “freedom of speech” will begin after the New Year! Everything that will be said by state officials and deputies of all levels or printed in the corresponding press will be considered as truth, absolute and indisputable! For instance, Piskun would say at a press conference that Yulia Timoshenko smuggled the Turkmen gas in China gas lighters, and this would be interpreted as real facts! Yu. Timoshenko, in her turn, would have the right to say that Piskun is a thief and imbecile – and this would be truth too! And so on and so forth. The real schizophrenia will begin, which is, as it is known, the pluralism of opinions in one head!
However, here one can also understand what the authors of the article wanted to say: they meant that a person spreading the words of state officials and organs must not be responsible for the contents of the information. Yet, we have what we have. Other articles of the new Code also suit the analyzed definitions of authentic/inauthentic information. For example, Article 296 states: “… the name of the person, which was detained, or which is suspected or accused of some crime, … may not be used (published) until the court verdict about his/her guilt comes into force”.
I even cannot imagine what our law-enforcers will tell at press conferences, and how the journalists will elucidate the open court sessions, where the accused communicate their names, which are written down to protocols that fully meet the requirements of Article 302! Many other examples may be given.
There is such juridical concept as the hierarchy of normative acts, which stipulate what to do, if normative acts contradict to each other. According to this hierarchy, the Ukrainian Constitution is more “powerful” than any laws and laws – than decrees or resolutions. When several laws contradict to each other, then the preference is given to that one, which has the latest date of the adoption, and which is accompanied with the comment that all laws, which were adopted before, are operable only in the part that does not contradict it. Yet, lawyers never thought what to do, if the articles of the same law would be contradictory. There was no need to consider this problem earlier, before the Ukrainian MPs presented the result of their joint legislative activities…
Tetiana Movtian, a lawyer,
specially for “Telekritika”, 25 April 2003, 12:15 p.m.
Freedom of Expression in Ukraine, 2003, №04